People v. Vanderburg

• Decision Date: 22 August 1960
• Docket Number: Cr. 3039
• Citation: 184 Cal.App.2d 33,7 Cal.Rptr. 287
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Wyley R. VANDERBURG, Defendant and Appellant.

Page 287

7 Cal.Rptr. 287

184 Cal.App.2d 33

PEOPLE of the State of California, Plaintiff and Respondent, v. Wyley R. VANDERBURG, Defendant and Appellant.

Cr. 3039.

District Court of Appeal, Third District, California.

Aug. 22, 1960.

James P. Mower, Modesto, for appellant.

Stanley Mosk, Atty. Gen., by Doris H. Maier, Edsel W. Haws, and Nat A. Agliano, Deputy Attys. Gen., for respondent.

VAN DYKE, Presiding Justice.

Defendant appeals from a judgment entered pursuant to a jury verdict finding him guilty of a violation of Section 11500 of the Health and Safety Code, following an indictment of the grand jury charging him with unlawfully possessing, furnishing and giving away marijuana.

He does not contend that the evidence is insufficient to sustain the verdict of the jury, but seeks reversal because of alleged error in the receipt of inadmissible evidence, the cumulative effect of which he contends denied him a fair trial.

The state's principal witness, one Glen Miller, had for some time been an undercover agent for the sheriff's office, investigating the sale and use of narcotics in Stanislaus County. He testified that on the morning of January 22, 1959, in accordance with previous arrangements, he met Sergeant Gaylord, head of the narcotics division of the county sheriff's office; that with Gaylord observing him he went to the auto body shop operated by defendant; that he asked defendant if he could get some marijuana from him and the defendant replied he had none but would take Miller to his home where he had a supply; that when they arrived there defendant produced a quantity of marijuana from which, at defendant's direction, Miller rolled a couple of cigarettes; that defendant refused to accept pay for the marijuana; that the two then returned to the shop and that he thereafter met Gaylord, to whom he gave the cigarettes. Miller's testimony was corroborated by Gaylord. The defendant took the stand in his own behalf and categorically denied that he gave any marijuana to Miller. Several friends and associates of defendant testified in his behalf. The sum total of their testimony was a flat contradiction of the testimony of Miller and of another state witness, one Kenneth Wilson, a deputy sheriff of Los Angeles County, who had participated with Miller and Gaylord in their investigation.

At the outset it is readily apparent that the evidence produced by the prosecution was sufficient to establish a prima facie case against the defendant. On the other hand, if the defendant and the witnesses who testified for him were believed by the jury defendant must have been acquitted. At a previous trial wherein the same witnesses appeared for the defense the jury failed to agree, but stood eleven to one for acquittal when discharged. Thus the issue of defendant's guilt turns solely upon the credibility of the witnesses on either side, for the evidence cannot be harmonized. One side or the other presented false testimony to the court. The matter of credibility, therefore, was decisive. The prosecuting attorney clearly realized this and from the beginning and throughout the proceedings made a determined attack upon the defense witnesses.

That the prosecuting attorney intended to attack defense witnesses and try the issue of their credibility was made apparent in his opening statement where, after summarizing the direct evidence that would be introduced to prove the appellant's guilt, he said: 'We will further show afterwards that Mr. Vanderburg called him [Miller] a stoolie and threatened him when he discovered that this was the man that turned him in and squealed on him and that Mr. Vanderburg and his friends have been constantly engaged in the harassment of this man and his family and we will further show that they will blacken his character and many of Mr. Vanderburg's friends will be walking into this court room.'

The first defense witness testified that he had heard Miller ask defendant to sell marijuana for him and on being refused heard Miller ask defendant's permission to use defendant's shop for such sales. The prosecuting attorney, after first establishing that the witness and the defendant were good friends, abruptly asked the following questions: 'Q. Did you try to buy some narcotics? A. No, sir, I didn't. Q. Are you certain?' On objection that these matters could not be inquired into, the prosecuting attorney stated that he realized that but that his purpose was impeachment. Further objection that collateral matters could not be gone into for such purpose was made, and sustained by the court. Notwithstanding this early rebuff, the prosecuting attorney continued to attempt improper impeachment and thereafter succeeded in doing so. To state in detail the numerous instances of improper impeachment would require such extensive recitals of transcript content that space will not permit. We are compelled to summarize.

Another defense witness, one Leroy Hutson, testified on direct to having heard Miller on two different occasions tell defendant that he [Miller] had lied about him, ascribing his lies in one instance to the fact that Sergeant Gaylord was 'riding his back and he had to do it', and on the other occasion to merely having had 'good reasons to do so.' On cross-examination the witness was asked if it was not a fact that Vanderburg had cursed Miller, called him a 'stoolie' and told him 'what his mother was.' The witness denied that such matters had occurred in his presence. Later on Miller was called in rebuttal and denied that he had ever told defendant he had lied about him. The following then occurred:

'Q. Will you tell the ladies and gentlemen of the Jury what was said at that time? A. I'd rather not come out and just flat say what he [appellant] said, sir, if I can get away from it.

'Q. This is a Court of Law. You tell these ladies and gentlemen of the Jury what he told you. A. It's pretty rough.

'[Defense Counsel]: Object to the witness's statement, Your Honor.

'The Court: * * * [To the witness] You'll have to state what was said.

'[Prosecuting Attorney]: Would you please? * * *

'[Defense Counsel]: * * * the statements are entirely out of order. Counsel for the Prosecution knows that.

'The Court: You may proceed. Would you answer now?

'[Prosecuting Attorney]: Q. Tell us what it was. A. He told me, 'Your mother must be a whore!' He said, 'She must mess with niggers and everybody else on the street,' and I think the last word he said, [the appellation which Miller asserted Vanderburg applied to him is too vile to print].'

Another defense witness, one James Robinson, testified on direct that he had known Miller to use narcotics and that Miller had stated to him he did use marijuana and could get it at any time he wanted it. On cross-examination he was asked as to any animosity he had towards Miller and he denied its existence. Thereupon the witness was asked if he did not have animosity towards Miller because of certain previous misconduct of the witness's brother. This was denied. The witness was then asked if it was not true that the witness's brother had sold dangerous drugs to 'high school kids'. Objection was interposed and the prosecuting attorney asserted that he was entitled to show animosity by the witness and his brother towards Miller. At this point the court expressed doubt as to the relevancy of these matters and the prosecuting attorney replied that he was trying to establish bias and prejudice against Miller because of what had happened to the witness's brother. Objection was then made that these matters should not be gone into because it was in effect trying another case. The objection was overruled. Thereupon it was brought out that Wilson and Miller had arrested the witness's brother for selling narcotics, that his case had been handled by the juvenile court and that he had been placed on probation. Motion to strike was denied. It was further shown that these matters occurred shortly after defendant had been arrested for the crime of possessing marijuana. The witness was then asked if it was not a fact that he disliked Miller because 'Miller had caught your brother.' The witness denied animosity arising out of those things.

A defense witness, George Mouser, on direct denied he had attended a marijuana party at which Miller had testified he had been present. He denied he had even seen marijuana in defendant's possession and denied other parts of Miller's testimony. On cross-examination he was asked concerning his own activities in respect of narcotics. For example, the following occurred:

'Q. You posed, did you not [to Miller], that you had an aunt by the name of Grace who lived on 6th Street and could get plenty of this stuff? A. No, I don't have an aunt named Grace and I didn't tell Glen Miller.

'Q. Did you make a trip with Glen Miller and Dale Guttierriz to Los Angeles in February, this year, 1959, to make a buy? Didn't you get in the car with them and go to Los Angeles to try to make a buy? A. No. You've got me mixed up.

'Q. You are George Mouser? A. Yes.

'Q. You never went to Los Angeles? A. I went to Long Beach twice but not with Dale Guttierriz and Glen Miller.

'Q. You never told Kenneth Wilson you had a connection in L. A.? A. No.'

At this point defense counsel objected that the matters being inquired into were incompetent, irrelevant and immaterial. No ruling was made. The prosecuting attorney went on:

'You know Kenneth Wilson? A. He was the guy with Glen Miller, yes.

'Q. Didn't you tell him you could get dope out of Los Angeles? * * * A. No. * * *

'Q. Didn't you boast your father had a trucking business--operated a trucking company and was trucking dangerous drugs from Oregon, they were being shipped in? A. No.

'Q. You are sure of that. A. Yes.

'Q. Didn't you tell him your aunt had a connection named Dago in Los Angeles, a good connection? A. No. * * *

'Q. On February 13th, 1959, do you recall being with Kenneth Wilson and Glen Miller?'

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